Baylor University Medical Center Settles False Claims Act Charge

Baylor University Medical Center will pay $907,355 to settle whistleblower allegations that it submitted false claims for radiation oncology services, including intensity modulated radiation therapy. The whistleblowers, Dr. Bryan Brian Berger and Ms. Janice Delp, worked at the Baylor University Medical Center. Dr. Berger was a radiation oncologist and Ms. Delp was a radiation therapist. The complaint alleges that both observed improper behavior at the center, including kickbacks, failure to provide supervision of dangerous radiation treatments, and fraudulent billing practices. Intensity modulated radiation therapy is a sophisticated radiation treatment indicated for specific types of cancer where extreme precision is required to spare patients’ surrounding organs or healthy tissue.

The Justice Department intervened in the case, which was originally filed under seal in federal court in Dallas. Subsequently, the complaint was unsealed. It was alleged by federal officials that Baylor University double billed Medicare for several procedures affiliated with radiation treatment plans, billed for certain high reimbursement radiation oncology services when a different, less expensive service should have been billed, billed for procedures without supporting documentation in the medical record, and improperly billed for radiation treatment delivery without corroboration of physician supervision.

It was this last allegation – high dose radiation treatment without physician supervision – that drove the litigation. At the very heart of the case, according to the complaint, was Baylor’s “disregard for the safety and well-being of their patients – patients who, in hopes of surviving cancer, agree to undergo extremely powerful forms of radiation therapy.” It was claimed that “by their very natures, these forms of radiation therapy involve inherent risks – most notably the risk of radiation overdose and the risk that the radiation will be delivered to the wrong area.” The complaint alleges further:

While patients at the Baylor University Medical Center believe that they are in the hands of caring, capable physicians during these highly complex and risky procedures, the radiation is actually delivered without required physician supervision. In fact, in order to maximize their own profits and at the expense of patient safety, Baylor allowed and encouraged physicians who are supposed to be supervising the radiation therapy – the radiation oncologists – to perform other duties and procedures in other places while their patients are being exposed to potentially lethal levels of radiation.

The lawsuit cites a 2010 New York Times investigation into 621 radiation mistakes in New York. The investigation found that on 284 occasions, radiation missed all or part of its intended target or treated the wrong body part entirely. Fifty patients received radiation intended for someone else, including one brain cancer patient who received radiation intended for breast cancer, the Times investigation found. The Times investigation focused on the case of 43-year old Scott Jerome-Parks who was given seven times the amount of prescribed radiation. He died as a result. The Times wrote:

As Scott Jerome-Parks lay dying, he clung to this wish: that his fatal radiation overdose – which left him deaf, struggling to see, unable to swallow, burned, with his teeth falling out, with ulcers in his mouth and throat, nauseated, in severe pain and finally unable to breathe – be studied and talked about publicly so that others might not have to live his nightmare.

The Times investigation also centered on another death. At about the same time of Jerome-Parks’ death, a 32-year-old breast cancer patient named Alexandra Jn-Charles absorbed the first of 27 days of radiation overdoses, each three times the prescribed amount. “A linear accelerator with a missing filter would burn a hole in her chest, leaving a gaping wound so painful that this mother of two young children considered suicide,” the Times reported. Ms. Jn-Charles died a few months later. The whistleblowers – Dr. Berger and Ms. Delp – were represented by Joel Androphy, a lawyer with Berg & Androphy in Houston, Texas. He did a very good job in the case. The government also did the right thing by getting involved in the case.